MZZFU v Minister for Immigration
[2013] FCCA 1986
•18 November 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MZZFU & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2013] FCCA 1986 |
| Catchwords: MIGRATION – Adjournment ruling. |
| Legislation: Migration Act 1958 (Cth) |
| Du v Minister for Immigration & Citizenship [2011] FMCA 753 Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 |
| First Applicant: | MZZFU |
| Second Applicant: | MZZFV |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REGUGEE REVIEW TRIBUNAL |
| File Number: | MLG 153 of 2013 |
| Judgment of: | Judge Burchardt |
| Hearing date: | 18 November 2013 |
| Date of Last Submission: | 18 November 2013 |
| Delivered at: | Melbourne |
| Delivered on: | 18 November 2013 |
REPRESENTATION
| The Applicant: | In person (assisted by Ms Ratnajeya) |
| Counsel for the First Respondent: | Mr Wood |
| Solicitors for the Respondents: | Clayton Utz Lawyers |
ORDERS
THE COURT ORDERS THAT:
Pursuant to r.7.01 of the Federal Circuit Court Rules 2001 (Cth), the name of the first respondent be amended to “Minister for Immigration and Border Protection”
The applicant to file and serve any written submissions on or before 29 November 2013.
The matter be adjourned to this Court for hearing before Judge Burchardt on 6 December 2013 at 2.15pm.
The applicant pay the first respondent’s costs of today thrown away by reason of the adjournment.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 153 of 2013
| MZZFU |
First Applicant
| MZZFV |
Second Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
In this matter today, the applicant is represented by Ms Ratnajeya who is a, if I can put it this way, a friendly force from the same community but who is not legally qualified, in the absence of Mr Fernandez, the applicant’s lawyer on the record. The week before last, it was indicated by the applicant that an adjournment would be sought and the first respondent made it clear that that was opposed. The application could not be ruled upon in Chambers and has been repeated by Ms Ratnajeya today. Essentially, the reasons put for the adjournment application are twofold.
First, it is said that Mr Fernandez, who is acting pro bono for the applicant, will know by January whether his health will have improved sufficiently to enable him to conduct the case or whether he will have to obtain somebody else to do so. His position, as I understand it, is that it is within his capacity to obtain somebody else to conduct the matter on the applicant’s behalf, notwithstanding that one would infer it would be pro bono representation. The second reason advanced is that the applicant is very strongly stressed by these proceedings and simply would not be capable, on any view, of representing herself in Court today.
The reasons for the first respondent’s opposition to adjournment have been forwarded in writing and I would paraphrase the matters as follows. There was a consent adjournment earlier in the year on the same footing. That is to say Mr Fernandez had indicated he was not in sufficiently good health to conduct the matter. Orders were sought in July 2013 for a hearing after August 2013 and the matter is of course now well over three months later. The applicant was due to file materials by the 7th of October 2013 and has failed to do so. Counsel for the first respondent points out correctly in my view that it must have been obvious to Mr Fernandez by that stage that he was not in a position to proceed today, and counsel is correct to say that alternative arrangements should have been made.
Indeed, one of the difficulties with the adjournment application is the fact that if Mr Fernandez is able to obtain alternative counsel in January 2014 should that be required, there is no earthly reason why he should not have been able to have done so in October 2013 in time for today. The first respondent also points to the fact that there is no entitlement to representation before the Court in a proceeding of this character. And indeed, very unfortunately for them, many applicants appear unrepresented.
Counsel has referred me to the judgment of Judge Lucev in the matter of Du v Minister for Immigration & Citizenship [2011] FMCA 753, and took me to the matters raised in [24]-[26] of that judgment. I would entirely agree with counsel that the matters referred to in subparagraphs [26](b), (d), (f), (g) and (h) are all of application in this case. There is no formal application for adjournment, no affidavit in support explaining the particular position that are asserted from the bar table on behalf of the applicant. The applicant has not completed any of the steps ordered to be completed on an interlocutory basis.
There is in this case prejudice to the first respondent by reason of continual delays. While this is true, there is no precise point of prejudice to which the first respondent would point. Nonetheless, it is certainly the case that there is prejudice to the proper administration of the scheme established under the Migration Act 1958 (Cth) in continual delays. And I accept further the submission of counsel for the first respondent that the High Court in Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 has made it clear that adjournments are not a matter simply remedied by costs order and indeed the proper and orderly administration of justice is clearly a significant consideration in a matter such as this.
The adjournment sought by the applicant is until effectively March next year. What is put is that the counsel acting on the record for the applicant will know by January 2014 whether he is well enough or not to conduct the matter by then. In my view, bearing in mind that my own listing circumstances mean that that would mean no listing until at least April 2014 which is some five months away, that is an inordinate amount of time. There is really nothing to be said to take away from the force of the first respondent’s submissions. They are all soundly based.
However, what does concern me, and this is probably obvious, is that the applicant simply cannot today at least present her case. In my view, balancing all these competing considerations together and bearing in mind the desirability of giving the applicant a fair opportunity to be heard, I think I should adjourn this matter as I am going to until 6 December at 2.15 pm. I should say that gives Mr Fernandez and/or the applicant some three or four weeks to find someone else. If that cannot be done, the applicant will have to represent herself as best she can.
RECORDED : NOT TRANSCRIBED
I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Judge Burchardt.
Associate:
Date: 26 November 2013
0